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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Brian G. Phillips,
No. CV-13-02057-PHX-DGC
Plaintiff,
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v.
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ORDER
Salt River Police Department, et al.,
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Defendants.
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On October 9, 2013, pro se Plaintiff filed a complaint against Defendants Salt
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River Police Department, Maricopa County Sheriff’s Department, Salt River Casino, and
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the Bureau of Indian Affairs. Doc. 1. Plaintiff also filed an application to proceed in
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forma pauperis (“IFP”). Doc. 3. The Court screened the complaint, dismissed it for
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failure to state a claim, denied IFP status, and gave Plaintiff until January 6, 2014, to file
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an amended complaint. Doc. 6. Plaintiff filed an amended complaint (Doc. 7) on
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December 23, 2014, and filed an application requesting IFP status (Doc. 8). The first
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amended complaint was virtually identical to Plaintiff’s initial complaint, and the Court
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dismissed the first amended complaint and denied Plaintiff’s application for IFP status.
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Doc. 12.
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complaint. On May 8, 2014, Plaintiff filed this second amended complaint. Doc. 13.
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The Court will deny Plaintiff’s application for IFP and dismiss the amended complaint
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for failure to state a claim. Further leave to amend will not be granted.
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Plaintiff was again given until May 16, 2014 to file a second amended
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I.
Legal Standard.
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In IFP proceedings, a district court “shall dismiss the case at any time if the court
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determines that . . . the action . . . fails to state a claim on which relief can be granted[.]”
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28 U.S.C. § 1915(e)(2). While much of section 1915 concerns prisoner litigation, section
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1915(e) applies to all IFP proceedings. Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir.
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2000) (en banc). “Section 1915(e)(2)(B)(ii) . . . allows a district court to dismiss[] sua
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sponte . . . a complaint that fails to state a claim[.]” Id. at 1130.
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Rule 8 of the Federal Rules of Civil Procedure provides that “[a] pleading that
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states a claim for relief must contain . . . a short and plain statement of the claim showing
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that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). This short and plain statement
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“need not contain detailed factual allegations; rather, it must plead ‘enough facts to state
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a claim to relief that is plausible on its face.’” Clemens v. DaimlerChrysler Corp., 534
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F.3d 1017, 1022 (9th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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(2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“The plausibility standard
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. . . asks for more than a sheer possibility that a defendant has acted unlawfully.”).
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When analyzing a complaint for failure to state a claim, “[a]ll allegations of
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material fact are taken as true.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996).
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Legal conclusions couched as factual allegations are not given a presumption of
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truthfulness, and “conclusory allegations of law and unwarranted inferences are not
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sufficient.”
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appropriate where the complaint lacks a cognizable legal theory, lacks sufficient facts
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alleged under a cognizable legal theory, or contains allegations disclosing some absolute
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defense or bar to recovery. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699
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(9th Cir. 1988); Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n.1 (9th Cir. 1997).
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II.
Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).
Dismissal is
Second Amended Complaint.
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Plaintiff’s second amended complaint again alleges civil rights and due process
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violations, conversion of personal property, and a request for return of his property.
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Doc. 13 at 7. Plaintiff alleges that he was arrested by the Salt River Police Department
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on the grounds of the Salt River Casino in November 2011 because security guard dogs
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smelled marijuana coming from his vehicle. Doc. 13 at 5. He alleges that his car was
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taken into custody and he was never read his Miranda rights. Id. He alleges that his
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hearing in Salt River was unfair and in violation of his civil and due process rights, that
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he was “constantly denied access to the courts, on the local, state and federal level,” and
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that Defendants colluded in violating his civil rights. Id. at 5-7.
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Plaintiff’s second amended complaint has not cured the deficiencies identified in
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the Court’s order dismissing his first two complaints. The second amended complaint
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still sets forth no facts regarding improper conduct by the Maricopa County Sheriff’s
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Office (“MCSO”). Plaintiff states only that MCSO “aided and abetted the Salt River
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Police Department, and conspired to cover up its illegal acts.” Id. at 3-4. This bare
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allegation fails to state a claim against MCSO.
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The second amended complaint still fails to set forth the basis for liability against
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Salt River Casino or assert that the Casino is a jural entity subject to suit. Rather, the
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complaint states only that the arrest occurred on the casino’s property and “thus they are
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liable for the false arrest and setting him up to be arrested.” Id. at 4. Plaintiff alleges no
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facts that would support this assertion of liability.
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Plaintiff also fails to set forth a basis for liability of the Bureau of Indian Affairs.
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Plaintiff states that it is negligent for failing to investigate “allegations of civil rights
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violations and tribal wrongdoing,” but states no facts that support his assertion that the
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Bureau should have conducted such an investigation.
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Plaintiff’s complaint does allege that his car was confiscated by the Salt River
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Police Department, that the seizure apparently was related to his possession of marijuana,
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that “a Salt River employee is illegally driving plaintiff’s car, and [that] his car was never
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used as evidence.” Id. at 4. But Plaintiff still fails to explain whether his property was
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forfeited or confiscated by court action, or to provide any facts in support of the
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allegation that his car is being driven illegally.
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proceeding of some kind, perhaps in tribal court, and even makes mention of a “lower
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His complaint mentions a court
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court” action, suggesting that there might have been an appeal. Id. at 5-6. But Plaintiff
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provides no factual description of the court proceeding, when or where it was held, or
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what it concerned. The complaint mentions various exhibits, but they are not attached to
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the second amended complaint. See Doc. 13. Because this claim continues to lack
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factual support, the Court cannot conclude that Plaintiff has set forth a plausible claim for
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relief against the Salt River Police Department.
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III.
Leave to Amend.
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As noted in both of the Court’s prior orders of dismissal, “[a] pro se litigant must
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be given leave to amend his or her complaint unless it is absolutely clear that the
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deficiencies of the complaint could not be cured by amendment.” Karim-Panahi v. L.A.
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Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). In its last order, however, the Court
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advised Plaintiff that this was the final opportunity the Court would afford him to amend
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his complaint, and that failure to do so would result in dismissal with prejudice. See
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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (holding that the district court
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did not abuse its discretion in dismissing a pro se plaintiff’s complaint for failing to
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comply with a court order). Plaintiff has now had three opportunities to state claims and
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has failed to do so. The Court will, therefore, dismiss this case with prejudice.
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IT IS ORDERED:
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1.
Plaintiff’s request for IFP status is denied with prejudice.
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2.
Plaintiff’s second amended complaint (Doc. 13) is dismissed with
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prejudice.
Dated this 28th day of July, 2014.
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